State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Mr. Wade:

I have received your letter of August 9, as well as the
materials attached to it.

You have complained with respect to requests for records
directed to the Department of Health relating to incidents that
occurred at the Arden Hill Hospital. It appears that the incidents
had been investigated by both that agency and the State Office of
Mental Health. Some records have been disclosed, but the contents
of many were substantially deleted.

While I am unfamiliar with the specific records at issue or
the nature of the incidents in question, I offer the following
comments.

First, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law.

Second, under the circumstances, it would appear that at least
two of the grounds for denial would be significant to an analysis
of rights of access.

Section 87(2)(a), the initial ground for denial, pertains to
records that "are specifically exempted from disclosure by state
or
federal statute." In the context of your inquiry, several statutes
might prohibit disclosure. For instance, §2805-l of the Public
Health Law entitled "Incident reporting" relates to various
kinds
of events occurring at hospitals. In relation to those reports,
§2805-m requires that such reports be kept confidential and
specifies that they are not subject to disclosure "under article
six of the public officers law", which is the Freedom of
Information Law. Similarly, §6527(3) of the Education Law pertains
to records regarding investigations of patient mental health care
and incidents at mental health facilities and states in part that:

"Neither the proceedings nor the records
relating to performance of a medical or a
quality assurance review function or
participation in a medical and dental
malpractice prevention program nor any report
required by the department of health pursuant
to section twenty-eight hundred five-1 of the
public health described herein, including the
investigation of an incident reported pursuant
to section 29.29 of the mental hygiene law,
shall be subject to disclosure under article
thirty-one of the civil practice law and rules
except as hereinafter provided or as provided
by any other provision of law."

Also potentially relevant is §87(2)(b) of the Freedom of
Information Law, which states that an agency may withhold records
to the extent that disclosure would constitute "an unwarranted
invasion of personal privacy." Further, §89(2)(b) includes
examples of unwarranted invasions of personal privacy, one of which
pertains to "disclosure of items of involving the medical or
personal records of clients or patients in a medical facility."
Therefore, even when the statutes conferring exemptions regarding
incident reports and similar records do not apply, insofar as
records would identify clients or patients, I believe that an
agency would have the ability to deny access to protect personal
privacy.

Lastly, you enclosed a news article which indicated that the
State Health Department and Office of Mental Health would be
conducting investigations. In my view, it does not follow that
reporting of certain matters by the news media would necessarily
require that the records sought must be disclosed. For reasons
described above, records prepared in conjunction with
investigations may justifiably be withheld in whole or in part.

I hope that the foregoing serves to enhance your understanding
of the matter and that I have been of assistance.